VOTING NOMINEE - Integrating the healing approach to criminal law

Professor of Law and Director, International Network on Therapeutic Jurisprudence, University of Puerto Rico International Network on Therapeutic Jurisprudence

Small teams of experts open the windows of opportunity for therapeutic jurisprudence (TJ) practices in ordinary courts.

Therapeutic Jurisprudence (TJ) (originally conceptualised and named by Wexler) invites judges to use insights from psychology, criminology, and social work. The strength of these approaches are mobilised within the framework of legal procedures, in order to achieve therapeutic gains, such as rehabilitation, compliance with the law and helping victims to cope with the impact of crime on their lives. Therapeutic jurisprudence practices often include contracts to commit to treatment and consensual approaches to sanctions, which incorporate the needs of victims and the community where the crime has been committed. Please see the website and the facebook page.

TJ has been successfully employed principally in small and special “problem-solving” courts, such as Drug Treatment Court and Mental Health Court. These courts are structured so as to invite a healthy dose of TJ practices.

Small teams of experts will help “ordinary” courts to apply TJ, especially in criminal, juvenile, and perhaps family cases. The teams and the courts will explore how TJ can be integrated into various stages of the process, such as: early diversion from the criminal process itself; in bail hearings, during plea negotiations and judicial settlement conferences, in the imposition of sentence, and in post-incarceration procedures and conditional release .

More broadly, TJ sees “the law” as consisting of 1. Rules of law, 2. Legal Procedures , and 3. Roles of legal actors (such as judges and lawyers). Under a useful metaphor, the rules and procedures (the legal landscape or structure) can be seen as ”bottles”, and the practices and techniques of legal actors as the “wine.” Better wine can often be poured into and served from the same bottles, although sometimes an inspection of the wine cellar may suggest the need for some new and better bottles(ie, law reform).

A simple example of pouring better wine into an existing bottle can be seen in the imposition of probation: instead of the judge unilaterally ordering probation and its conditions, the judge could begin the process by soliciting the offender’s input: asking the offender to personally justify a probationary sentence and the conditions the offender deems necessary and appropriate (eg, curfew, AA meetings, school attendance). According to the procedural justice literature, this latter procedure should increase offender compliance and sense of fair treatment. The procedural justice example also underscores the important fact that psychology, criminology, and social work serve as the principal “vineyards” for producing TJ wine.

1. Can you briefly describe the innovative idea, in terms of the problem(s) it tries to solve and why is it necessary?

As noted above, the use of TJ practices in judicial settings can be of enormous benefit to defendants and victims, and thus to society in general. Our idea is to maximie the use of TJ in ordinary court settings, not limiting the use of TJ to special courts that are only able to handle a limited number of cases and clients.

The specific ‘TJ practices’ that are demonstrably effective in “problem-solving courts” which would be applied in traditional courts include: a team approach to problem-solving, scheduling of regular review hearings (“wellness checks”) to enable the judicial officer to monitor the case, and the use of TJ communication skills by the judicial officers and attorneys to maximise the understanding of each party’s position and needs. Those TJ communication skills might include simple mediation techniques, active listening, use of empathy and gentle confrontation, and according respect and the opportunity to be heard to all parties, including victims, victims’ families, and the defendant’s family.

As a concrete mechanism to effectuate the mainstreaming of TJ techniques, we propose to assemble small judge-led teams from interested local jurisdictions, familiarise them with these and related TJ techniques, and discuss with them how TJ might best be implemented in their respective jurisdictions. These teams will commit to holding later local sessions in order to implement the TJ approach.

In criminal justice this is the time to do it. Courts need increased public trust and confidence; judges need increased professional satisfaction; all of us need reduced recidivism and better offender and victim outcomes. A healing approach to the law can be accommodated with underlying basic values of existing criminal law models, including just deserts as well as rehabilitation.

2. What makes your innovative idea unique?

We are proposing a simple and readily understandable methodology to encourage the mainstreaming of TJ on an international level. We are the first to propose the simple but vivid ‘wine’ (practices and techniques) and ‘bottle’ (relevant legal landscape) methodology. Further, we are proposing a concrete mechanism-- the training of interested small local teams who will serve as facilitators and implementers of TJ in judicial settings in their home communities.

Thus, the innovation has two basic components:

an “analytical” component, which is the wine/bottle metaphor for thinking about the relevant law and procedure

a “training-implementation” component, which involves the expert team and the local team charged with later implementation in the home community.

3. What triggered the innovative idea?

The success of problem-solving courts using TJ principles has been acknowledged, leading to a desire to expand the use of TJ; at the same time, however, economic reasons impede the creation of new courts and even threaten the continued existence of current ones. Thus, the best strategy seems to be to examine existing legal codes in interested jurisdictions to see how TJ practices can be promoted under current code provisions (or, in some cases, to see what legislative reforms would be called for to facilitate the introduction of TJ practices).

4. Which persons and organisations came up with the innovative idea and what role do they play? Which persons and organisations would need to be involved to further develop the innovative idea and what role will they play?

A number of judges with experience in problem-solving courts have begun to write about the benefits of extending the use of TJ practices and of “mainstreaming” TJ. In particular, former Arizona judge (now professor) Michael Jones, as well as Australian magistrates Pauline Spencer and Michael King, have published important papers on the topic. And University of Puerto Rico Professor David B. Wexler( the Director of the International Network on Therapeutic Jurisprudence, and the academic who first conceptualised and named Therapeutic Jurisprudence in 1987) recently proposed the use of the wine and bottle analogy and methodology in a paper entitled New Wine in New Bottles: The Need to Sketch a Therapeutic Jurisprudence ‘Code’ of Proposed Criminal Processes and Practices, available here.

Professor Wexler and Judges Jones and Spencer were all at a recent TJ meeting in Amsterdam and had the privilege of meeting with HiiL professionals to explore the viability of the project. All three would be delighted to play an active role in implementing the project internationally. Individually, we have made beginning efforts and some important products have been produced, but true implementation will require a strong, concerted, and systematic effort, which we believe can be accomplished by training small judge-led local teams that agree to implement the TJ mainstreaming effort in their home jurisdictions.

5. What kind of resistance do you expect to encounter and how do you plan to overcome it?

We do not anticipate major resistance as this project will basically seek to facilitate persons and professionals who themselves have an interest in TJ and its expanded scope in practice .Indeed, the greatest enthusiasts for this expanded project are problem-solving court judges themselves (such as Judges Jones and Spencer who, with Professor Wexler, are the proponents of this mainstreaming TJ project). Such judges know firsthand the considerable advantages of using a TJ approach and realise the restrictive entry requirements of most problem-solving courts lead to the exclusion from them of many persons with problems of drugs, alcohol, mental illness, and the like, leaving those persons to be ‘processed’ in the general court system.

6. How do you make the goals of your innovative idea realistic and attainable, and when will quick wins be available?

Ideally, a workshop (or series of workshops) could be held where a small team of facilitators (such as Wexler, Jones, and Spencer or their counterparts) would meet with small teams of interested jurisdictions (eg, a judge, prosecutor, defense lawyer, law professor, treatment professional) to discuss how best to conduct an examination of local law and practice, and, then, how best to offer an educational program for local professionals to explore how best to infuse TJ practices into the system. Ideally, progress should flow quickly, leading to changes in the application of the law (and, occasionally, to proposed law reform, which would be longer-term). The project can be undertaken in large or small doses, depending on interest, expertise, and time constraints. For example, the Youth Act project (addressed and cited later in #14) is an illustration of an overview and analysis, from a TJ/wine/bottle perspective, of a full piece of legislation.

By contrast, a recent paper by Wexler and Jones considered a single section of Arizona law dealing with criminal settlement conferences, a legal structure that seems to us quite ‘TJ-friendly’ in the sense of being compatible with the introduction in practice of many TJ techniques (such as having the defendant and family as well as the victim and family attend and participate in the conference if they would like to do so). Yet, the friendly bottle has in general not been filled with TJ wine, since many judges utilise the conference merely to have a brief conversation with defense counsel and prosecutor. When he was on the bench, however, Judge Jones did much more: he engaged in active listening, in showing empathy, and in inviting the parties and family members mentioned above. And in a joint Wexler/Jones article on point, the authors stressed how that TJ wine (and some other techniques new to the essay) could lead to better results and better satisfaction with the hearings. For the essay, Employing the ‘Last Best Offer’ Approach in Criminal Settlement Conferences: The Therapeutic Application of an Arbitration Technique in Judicial Mediation, see here.

As the law is applied in a more therapeutic manner, whether in a full code (such as the Youth Act) or in a specific section (such as the criminal settlement conference), we should also expect meaningful results in the rehabilitation of offenders, in the satisfaction of victims, and the like. Evaluations of such reforms could look at outcome measures relevant to the particular reform, such as recidivism rates, client, victim, and judicial satisfaction, perceived fairness, levels of trust and confidence in the courts, and the like.

7. Will the innovative idea affect other organisations in the chain and if that is the case, how will it affect them?

The execution of the idea should affect the behaviour of judges, lawyers, and others involved in the administration of justice, including, of course, the ‘clients’ and ‘consumers’ of the justice system, including offenders, victims, and their families.

8. How will the development of the innovative idea be funded and what would be the reasons for the financing organisation?

Funding would be sought to bring to one location a team of facilitators(such as Wexler, Jones, and Spencer or their counterparts from other jurisdictions) and small teams of professionals from interested jurisdictions. The local teams would commit to then conduct training and implementation sessions in their local communities. The local communities, and perhaps the relevant Judicial Academy, should be supportive of the approach, should authorise released time of the small team members for training purposes, and might, if feasible, contribute to travel and lodging expenses. Logistically, the training may even be accomplished by distance education, enabling the expert training teams and/or the local judge-led teams to remain in their home locations.

9. Can you name 3 to 5 characteristics of the innovative idea that are most essential to make it work?

Soliciting small teams from jurisdictions interested in looking at how the law and practice of their jurisdiction might be improved.

Having those small teams, after exposure to the TJ approach and the methodology of examining the law (bottles) and its application(wine), discuss how their law and, especially, the administration of their local law, could be improved.

Having those small teams later hold training sessions to those in their home communities involved in administering the law.

10. How do you measure whether the innovative idea has turned into a successful innovation?

Of interest would be the number of jurisdictions expressing interest in the project, feedback given by the small local teams on what was covered in the training session with the experts, and user satisfaction feedback obtained at the time of the local educational sessions as well as at followup periods.

11. How many people or organisations could potentially benefit your innovative idea now and in the future? Can or will the innovative idea be used internationally and how do you overcome cultural differences?

This could be of enormous potential benefit, and, given the wide international reach of TJ, it is already an international project.

12. Can you quantify the financial benefits?

This is not the essential point of our project., but improving the system of justice, reducing recidivism, and decreasing future court involvement over time should surely result in overall cost reduction.

13. Will the innovative idea be financially viable and sustainable and if yes, how?

The success could easily result in a ‘domino effect’ whereby the mainstreaming effort could spread from jurisdiction to jurisdiction. Cost would seem to be a minor issue once the project is truly underway.

14. Did you receive any recognition?

No formal awards have been received, but there is already considerable interest in the mainstreaming project. For the most recent example, an Israeli law/criminology paper has just been produced entitled, The TJ Mainstreaming Project: An Evaluation of the Israeli Youth Act. The paper is a direct result of the New Wine New Bottles paper and approach, which it cites and follows closely. (Under the model we propose here, an ideal followup would be for the author and a small team of facilitators to gather together Israeli youth court judges, lawyers, treatment personnel and the like to discuss the author’s suggestions and how they and related matters can best be implemented to improve the functioning of the Youth Act).

15. What lessons did you learn so far that could be useful to others?

We have learned that this needs to be a more systematic effort, rather than a hit-or-miss endeavor, which it has been to date.

The Bottle/Wine analogy and method seems to be easily understood and applied. In essence, we are basically talking about the law and its application, but the analogy seems to stimulate thinking and interest. It is visual, vivid, conceptually simple, and our experience is that it seems to animate groups that are exposed to it.

We have learned that to actually effectuate change, we need to establish a concrete mechanism to encourage and facilitate jurisdictions to examine their law and its administration, and to commit to followup in order to actually implement the called-for change. We believe the small team approach described in other sections of this questionnaire should be able to serve well as that concrete mechanism. In fact, that team approach is similar to what many jurisdictions have done when they created problem-solving courts, such as drug courts, a small group from a given locale would be selected and would travel to a host location to observe and learn, and would then return home to launch a local drug treatment court. Our proposal is somewhat similar, but would focus not so much on the creation of special courts but rather on how TJ principles can be used in the ordinary criminal process.

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